Maia Banarescu: The last evolutions in case of detainee, Platon reflect a dramatic diminution of value of juridical institute of defense of the Republic of Moldova
People’s Advocate Office asks the National Administration of Penitentiaries for immediate reinstatement of rights of the detainee, Veaceslav Platon by ensuring the immediate access of lawyers to businessman, access to information and medical assistance.
People’s Advocate for children’s rights, Maia Banarescu who temporary ensures the attributions of People’s Advocate asks the National Authorities of Penitentiaries (ANP) for immediate reinstatement to the rights of defense of detainee, Veaceslav Platon by ensuring the immediate access of lawyers to businessman. The Ombudsman also requires for respecting and protecting the right of businessman to information access and medical assistance which are fundamental rights guaranteed both, by the international and national standards.
In a notice with recommendations sent to ANP it is mentioned that the right of defense of the concerned person was roughly violated, in the conditions in which during one month Veaceslav Platon has no possibility to meet with his lawyers. In the documents it is also found the flagrant violation of the right of detainee to access to information and medical assistance.
The last evolutions in case of the detainee, Platon reflects a dramatic diminution of value of juridical institute of defense of the Republic of Moldova, states Maia Banarescu. The Ombudsman appreciates this situation as being extremely dangerous from the perspective of protection of human rights and freedoms and consolidation of the rule of law in our country.
Maia Banarescu considers any justifications of logistical or financial order invoked by the responsible authorities when human rights and human dignity are affected as being inadmissible.
Both the Constitution and international treaties on fundamental human rights and freedoms state the principle of equality for all before law, free access to justice, right of defense. The right of person to address to justice is a sine qua non condition in the efficient ensuring of his/her right and freedoms exercising. Realization of justice in a rule of law can be done only by respecting human legal rights and interests. One of the fundamental principle of criminal process is the principle of ensuring the right of defense, it being not only a manifestation of the rule of law, but also a condition necessary for the efficient realization of justice.
Procedural guarantees in the text of the European Convention on Human Rights sets the positive obligations for the states – adoption of efficient measures for ensuring a legal equitable and public proceeding in civil and criminal cases, ensuring to defendant the time and facilities necessary for his/her defense.
The European Court reminds that the deprivation of freedom measures usually involves particular inconveniences for persons under custody. Though, it reminds that putting a person into custody does not determine that the person under custody losses the rights guaranteed by the convention. On the contrary, in particular cases, the person taken into custody can need increased protection due to the vulnerability of his/her situation and because he/she is fully under the state custody.
Thus, the state is obliged, despite the logistic and financial problems to organize its penitentiary system so that ensuring to persons under custody the respect of their human dignity[1].
According to Recommendation no.(2000)21 of the Committee of Ministers of the Council of Europe the lawyer is also the qualified and authorized person in compliance with law to plead, action on behalf of his clients, to practice law, to come before a court of law or to consult or represent in legal matters his clients. In the recommendations of the Committee of Ministers of the CoE it is also emphasized that the member states should undertake all the necessary measures for respecting, protecting and promoting the freedom for exercising the lawyer profession, without discrimination and interferences of authorities or public. Lawyers should have access to their clients, especially to those deprived of freedom.
In the reaction act it is also noted that several articles of Criminal procedure code, Execution code set very clear the right of accused person to have meetings with his/her defender in confidential conditions without limiting to their number or duration, as well as the right of defender to meet with the suspect, accused person, defendant without limiting the number and duration of meetings. It is also stipulated that the frequency of meetings with the lawyer, mediator in the mediation process within criminal cases or other persons provided by law is not limited.
In the art. 53 of Law on advocacy it is also mentioned that when providing legal assistance to an apprehended person, kept in arrest or convicted, the lawyer is provided at any stage of criminal or administrative process with the necessary conditions for meetings and consultations, being respected the confidentiality, without limiting the duration and number of meetings and consultations.
Referring to limiting the access to information, by the interdiction of receiving by the person under the custody of written publications, in the document issued by the Ombudsman it is mentioned that according to the art.208 para.(1) Execution code, the convicted person is provided with the access to information broadcasted through informing mass means. From here it derives the obligation of penitentiary for providing and not limiting the contact of persons who are under custody with the exterior world.
In the part related to stomatological treatment which is necessary to the person who is under custody, the Ombudsman draws attention on the fact that it is the obligation of the state provided in the art. 3 ECHR to protect physical welfare of persons who are deprived of freedom, inclusively to ensure them the necessary medical assistance [2]. The simple fact that a person who is under custody is seen by a doctor and receives a particular type of treatment cannot automatically lead to the conclusion that the medical assistance is proper. The authorities should also demonstrate that there were created the necessary conditions for following in a concrete manner the prescribed treatment [3].
Based on the mentioned above circumstances, under the Law on People’s Advocate (Ombudsman) no. 52 of 03.04.2014, the Ombudsman recommended to the National Administration of Penitentiaries for undertaking the necessary measures for the immediate reinstatement of rights of defense, access to information and medical assistance of detainee, Veaceslav Platon by ensuring the access of his lawyers to meetings in the Penitentiary no. 13 of Chisinau, ensuring the access to information removing any interdictions to receiving or transmitting to detainee of written publications and removing any impediments so that the detainee benefiting of adequate medical assistance.
People’s Advocate for children’s rights also requires to be initiated an internal inquiry on legality of actions/inactions of the administration of the Penitentiary no. 13 which generated the serious violation of the right of detainee as well as hold the responsible persons of the institution disciplinary liable.
The Ombudsman also intends to address the Prosecutor’s Office for initiating a criminal proceeding about the leading position persons of the Penitentiary no. 13 who committed violations which generated the violation of human rights and freedoms.
The Ombudsman also requires undertaking efficient measures for ensuring the effective exercising of the right of defense of all detainees of the Penitentiary no. 13 of Chisinau by elaborating internal regulations for standardizing the actions of the administration of penitentiaries on assurance of the right of defense of detainees.
People’s Advocate for children’s rights considers imperiously necessary the consolidation of mechanism on monitoring the activity of penitentiaries for ensuring the access of lawyers for providing legal assistance to detainees.
In connection with some statements made by the lawyers of the detainee Platon on an eventual complicity of Ombudsman with the administration of the Penitentiary no. 13, Maia Banarescu firmly denies these accusations, appreciating them as un-grounded and injurious. The mediation procedure which was wanted to be initiated on March 01, between the administration of the Penitentiary no. 13 and lawyers of Veaceslav Platon has the purpose to demonstrate the created situation and to settle this problem, but not for misleading the defenders of businessman and mime an attempt to involve in this process.
People’s Advocate Office is governed in its activity by the principles of independence and impartiality, being given that the mission of institution is to ensure a balance between the most important instruments used by the independent actors, mediation being one of the most important instrument used by the settlement of disagreements between the representatives of the state and representatives of civil society, persons, defenders of human rights and other entities, mentions Maia Banarescu.
[1] Choukhovoï împotriva Rusiei, nr. 63955/00, 27 martie 2008 şi Benediktov împotriva Rusiei, nr. 106/02, 10 mai 2007
[2] Cauza Hurtado împotriva Elveţiei
[3] Cauza Iacov Stanciu împotriva României şi cauza Visloguzov împotriva Ukrainei
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